Hand v Hornsby Shire Council [2017] NSWLEC 1063

Hand v Hornsby Shire Council [2017] NSWLEC 1063

The appeal was dismissed because the unauthorised carport, with its reduced setback, bulk, scale, materiality and emphasis of built form over landscaping, was inconsistent with the established street character and did not meet the DCP objectives for scale and setbacks. The works also encroached into the road reserve and would impede the public purpose of that land for services, making retention and completion of the carport contrary to the public interest. Without Council's proposed ameliorative deferred commencement conditions, the impact on the heritage conservation area was also unacceptable.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Class 1 Development Appeal / Appeal Against Council's Refusal of Development Application Da/180/2016; Mandatory Conciliation Terminated and Proceedings Dealt With as a Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['unauthorised Carport' 'encroachment Into Road Reserve' 'setbacks and Streetscape Impact' 'public Interest' 'heritage Conservation Area']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['unauthorised Carport' 'encroachment Into Road Reserve' 'setbacks and Streetscape Impact' 'public Interest' 'heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Council's Refusal of Development Application Da/180/2016; Mandatory Conciliation Terminated and Proceedings Dealt With as a Hearing

Legal Issues

  1. 1 ['Whether the unauthorised development should be allowed to remain and consent given for completion of the works and use of the carport' "Whether the carport's reduced setback, bulk, scale and materiality were compatible with the streetscape and low density residential environment" 'Whether retention of works encroaching into the road reserve would impede public land functions and access to services' 'Whether the proposed development had an unacceptable impact on the Beecroft/Cheltenham heritage conservation area' 'Whether approval was in the public interest under s79C of the Environmental Planning and Assessment Act 1979']

Ratio Decidendi

The appeal was dismissed because the unauthorised carport, with its reduced setback, bulk, scale, materiality and emphasis of built form over landscaping, was inconsistent with the established street character and did not meet the DCP objectives for scale and setbacks. The works also encroached into the road reserve and would impede the public purpose of that land for services, making retention and completion of the carport contrary to the public interest. Without Council's proposed ameliorative deferred commencement conditions, the impact on the heritage conservation area was also unacceptable.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application DA/180/2016 for the completion and use of the free standing double carport at 32A Castle Howard Road, Cheltenham is refused.' 'The exhibits are returned with the exception of exhibits 1, and the Class 1 application filed on November 4 2016.']